Other viewpoints: Legal opinions should be public

Thursday

Apr 4, 2013 at 12:01 AMApr 4, 2013 at 9:27 AM

The opinions of the Justice Department's Office of Legal Counsel are important, setting legal interpretations that bind federal agencies on issues such as torture and secret surveillance. So why can't the public read all of the OLC's legal conclusions?

The opinions of the Justice Departmentís Office of Legal Counsel are important, setting legal interpretations that bind federal agencies on issues such as torture and secret surveillance. So why canít the public read all of the OLCís legal conclusions?

That question underlies a challenge that the Electronic Frontier Foundation has made against the Justice Department, seeking a legal-counsel assessment of the FBIís authority to surveil Americans without a judicial warrant. The Justice Department refused to hand over the legal counselís opinion, citing exceptions to the Freedom of Information Act.

So far, the suit hasnít gone the Electronic Frontier Foundationís way. But, as The Washington Post and others recently argued in an amicus brief, the U.S. Court of Appeals for the District of Columbia Circuit should recognize the critical interest that the public has in knowing how the executive branch interprets the laws the Constitution tasks it to enforce.

At issue is an 11-page document dating to 2010, when the FBI was reviewing its practice of demanding telephone and other records from communications firms without a warrant ó as long as the government claimed that the information was related to a national security investigation. Justiceís inspector general found that, even with all the leeway the law gives the FBI, it still sometimes demanded personal data without much of any process at all. After the FBI asked the legal-counsel office to weigh in, the Electronic Frontier Foundation and others naturally wanted to know what determination the office made on the legal questions involved.

But the Justice Department denied the request, and the Electronic Frontier Foundationís appeal to Justiceís Office of Information Policy languished without a decision. In the case that followed, District Judge Richard J. Leon ruled that the legal counselís work was a protected part of a deliberative process within the government, necessary to ensure that policymakers can have open and frank discussions before they make final decisions.

Yet, as the amicus brief points out, the legal counselís opinions arenít some intermediary step toward establishing the final legal interpretations for the executive branch. In general, they are the final legal interpretations for the executive branch. Congress, the judiciary and the public at large all deserve to know what the executive branch thinks it can do, once it issues a conclusive opinion.

As it stands, the Justice Department can release the legal counselís conclusions, or it could not, which would mean there remains a storehouse of unreviewable government legal analysis determining what the government does on a daily basis. Only those sections that contain classified materials have good reason to remain secret. Itís now up to the courts to say so.